Contractors Offered Advice on Avoiding Transgender Bias

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By Jay-Anne B. Casuga

Aug. 8 — Transgender job applicants and employees often face discrimination and harassment, and federal contractors and subcontractors are now at the forefront of establishing inclusive workplaces, attorneys told conference attendees.

“It is our job now to build bridges and move forward,” management attorney Valerie Hoffman of Seyfarth Shaw in Chicago said Aug. 4 at a National Industry Liaison Group conference in Charlotte, N.C.

Erica Worthington, a consultant on transgender issues and a former patent counsel with Qualcomm Inc., said more than 50 percent of transgender individuals have reported being harassed at work and 26 percent that they were fired because of their gender identity. She cited the statistics from a study by the National Gay and Lesbian Task Force and the National Center for Transgender Equality.

Worthington, who transitioned from male to female while working at Qualcomm, said 22 percent of transgender individuals have reported being denied access to bathrooms that correspond with their gender identities and 20 percent said that they had been removed from having contact with clients.

Hoffman and Worthington, along with management attorney Annette Tyman of Seyfarth Shaw in Chicago, provided a number of practical solutions for contractors to address workplace issues relating to transgender applicants and employees, and to avoid potential liability.

“Because of all these issues—harassment, termination and the inability to get jobs—there's a need to have action moving forward,” Tyman said.

OFCCP Rules Prohibit Transgender Bias

In August 2014, the Labor Department's Office of Federal Contract Compliance Programs issued an agency directive to clarify that sex-based employment discrimination under Executive Order 11,246 includes bias based on gender identity and transgender status, conforming to the Equal Employment Opportunity Commission's 2012 ruling in Macy v. Holder, EEOC, No. 0120120821, 4/20/12.

In Macy, the EEOC recognized gender identity bias as sex discrimination under Title VII of the 1964 Civil Rights Act. The OFCCP generally follows Title VII principles when enforcing EO 11,246.

Title VII, however, doesn't explicitly provide anti-bias protections based on sexual orientation or gender identity.

Around the same time that the OFCCP memorialized its position on sex bias in the agency directive, President Barack Obama issued EO 13,672 to expressly prohibit contractors from discriminating against applicants and employees based on sexual orientation and transgender status. The OFCCP issued final rules implementing that order in December 2014.

It also finalized sex discrimination rules in June that clarified contractor obligations toward transgender workers.

Bathroom Access, Benefits

For example, Tyman said, the OFCCP's sex bias rules require contractors to allow workers to use restrooms, changing rooms and similar facilities that are consistent with their gender identity.

She said the rules also require employers to provide equal benefits regardless of sex assigned at birth, gender identity or recorded gender.

The rules further state that explicit, categorical exclusion of medical coverage for care related to a worker's gender dysphoria or gender transition are facially discriminatory, Tyman said.

Open Question Regarding FMLA Leave

Tyman said an open legal question is whether transition-related medical procedures are covered under the Family and Medical Leave Act.

The FMLA allows an eligible employee to take 12 weeks of unpaid, job-protected leave within a 12-month period for a serious health condition that makes the employee unable to perform his or her essential job functions.

Although it's not clear whether transition-related services qualify as a “serious health condition” under the FMLA, Tyman said federal contractors should consider allowing transgender employees to use FMLA leave for those procedures anyway.

Worthington agreed and said employees generally won't file a lawsuit until their leave is denied.

Other Practical Advice

From a legal perspective, Hoffman said contractors should review and modify their equal employment opportunity, affirmative action and non-harassment policies and procedures to include gender identity protections.

She said contractors also should ensure they don't have policies requiring employees to use restrooms, locker rooms and related facilities that correspond to their sex assigned at birth.

“I don't think anyone has that kind of written policy,” said Hoffman, chair of Seyfarth Shaw's OFCCP compliance, affirmative action and diversity consulting practice group. “I've never seen one, but we certainly know we shouldn't have it.”

She said that contractors could consider adding a privacy screen in changing areas or providing access to all-gender or single-occupancy facilities.

Additionally, she said contractors should review their health plan benefit coverage to ensure they comply with the OFCCP's rules.

Worthington offered practical advice from a human resources perspective.

She recommended that contractors provide manager and employee training on transgender workplace issues and identify a “knowledgeable internal resource” to answer worker questions.

When employees decide to transition, Worthington said, they should create a transition plan with their manager and HR.

The plan should include information on who will communicate to the workforce and what information will be communicated, name and pronoun changes, restroom use, anticipated medical leave and benefits, Worthington said.

“Each transgender person experiences their transition in a unique way and on their own timeline,” she said. “An individualized transition plan charting out milestones is helpful for both the employee and the workplace.”

In cases in which other employees object to the transition on religious grounds, Worthington said contractors should emphasize that employees are entitled to their beliefs but they should treat all their co-workers with respect and tolerance.

To contact the reporter on this story: Jay-Anne B. Casuga in Charlotte, N.C., at jcasuga@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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